JB

The superb (and therefore non-mediocre) Matthew Yglesias suggests that we could do with a little more mediocrity among our judges:

Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that's remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?

Certainly I wouldn't want stupid judges, but you can be a lot less brilliant than Judge Posner before you become stupid. I think a nice, ordinarily smart guy who got good grades in college and law school but who hasn't demonstrated much intellectual creativity or daring or cutting brilliance is exactly what we're looking for. Leave brilliant reconceptualizations to politicians and writers and professors and let the judges just judge away boringly.

Matthew's position has a long and famous history. When Richard Nixon nominated G. Harrold Carswell in 1969 to be a Surpeme Court Justice, many people pointed out Carswell's less than stunning qualifications. Senator Roman Hruska, a conservative politician from Nebraska, attempted to turn this into an asset: "Even if he is mediocre," Hruska contended, "there are a lot of mediocre judges and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Lots of people made fun of Hruska for saying that, and he's gone down in history for being a champion of mediocrity. But Matthew's argument is more serious. What we want on the federal bench above all is good judgment. Good judgment is not the same thing as great legal acuity or legal brilliance. Nevertheless, I would disagree with Matthew that we want boring judges. Some boring judges don't have good judgment, while others do. Judging is not just mechanical application of precedents. It is not simply following the rules laid down. It is an art, and like all arts, is done better by people with talent for it than by people who lack that talent.

Good judging also involves more than the ability to figure out who should win. It also requires the ability to state principled legal conclusions in written form that can be useful to other judges and other actors in the legal system. A judge may recognize that the plaintiff should win in a particular case, but may not be able to articulate the reasons for that conclusion in a way that captures the best legal principle for deciding the case, and that distinguishes other fact situations that seem identical but in fact are not. Judges who cannot perform these tasks well may move the law in the wrong direction. People who have medicore legal minds are usually not as good at articulating the proper grounds for resolution. They often tend to conflate issues or gloss over important distinctions. Law professors tend to think that brilliant legal minds are better at these features of judging than less brilliant legal minds. They are right about that, I think, but there are other important considerations that go into the art of good judging, and as Matthew suggests, we should not assume that law professors are the best at all of the aspects that go into this art.